BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 19/01/2010
CORAM
THE HONOURABLE MR.JUSTICE D.MURUGESAN
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
W.P(MD)No.13733 of 2009
A.Subramanian .. Petitioner
vs
1. The Revenue Divisional Officer
Sivakasi, Virudhunagar District
2. The Tahsidar
Rajapalayam
Virudhunagar District .. Respondents
Petition under Article 226 of the Constitution of India, praying for the
issue of a Writ of Certiorarified Mandamus calling for the records of the 2nd
respondent in Proceedings No.Nee.Mu.(A3)/3893/01 dated 7.1.2008 and quash the
same and consequently direct the respondents to hold a proper enquiry in
accordance with alw and to issue community certificate to the petitioner as
Hindu Malaikuravar Scheduled Tribe.
!For Petitioner ... Mr.S.Silambanan
Senior Counsel for
M/s Profexs Associates
^For Respondents ... Mr.D.Sasikumar
Government Advocate
:ORDER
D.MURUGESAN, J.
The writ petition relates to the challenge to the order of the Revenue
Divisional Officer, Sivakasi in refusing to issue the community certificate to
the petitioner certifying himself to belong to Malaikuravar community, which is
notified to be a Scheduled Tribe. According to the petitioner, he belongs to
Malaikuravar community and the said community people originally resided in the
hilly areas of southern part of Tamil Nadu, which were popularly known as
‘Kurunelu lands’ during the Pandya Kings’ rule. The community had the
occupation of hunting, basket making out of bamboos, collecting and selling
honey and palm reading. As the hilly tribes are socially and educationally
backward and their numeric is small, they used to migrate from one place to
another and presently most of them are residing in places like Rajapalayam,
Puliangudi, Tenkasi, Kadayanallur, Sivagiri, Senkottai, Srivilliputhur, etc.
2. The petitioner applied to the Revenue Divisional Officer, Sivakasi for
the grant of community certificate in the year 1999. That request was rejected
by the Sub Collector, Sivakasi in his proceedings dated 22.2.2000. Questioning
the same, he filed W.P.No.8069 of 2001 before this Court and this Court by order
dated 9.4.2007 set aside the order of the Sub Collector, Sivakasi and directed
the authorities to reconsider the matter by taking into account the relevant
aspects after giving further opportunity to the petitioner. By the impugned
proceedings, the Revenue Divisional Officer, Sivakasi has once again rejected
the request of the petitioner for issuance of community certificate on the
ground that sufficient materials were not produced by the petitioner for
issuance of such certificate. Questioning the same, the present writ petition
is filed.
3. We have heard Mr.S.Silambanan, learned senior counsel appearing for the
petitioner and Mr.D.Sasikumar, learned Government Advocate appearing for the
respondents.
4. In our opinion, the writ petition cannot be entertained, as the
petitioner has got an effective alternative remedy by way of preferring appeal
to the State Level Scrutiny Committee, which was constituted as per the
directions of the Apex Court in Kumari Madhuri Patil and another v. Additional
Commissioner, Tribal Development, Thane and others, (1994) 6 SCC 241. The
following are the relevant directions of the Apex Court issued to streamline the
procedure for issuance of social status certificates, their scrutiny and their
approval:
“1. The application for grant of social status certificate shall be made to the
Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and
the certificate shall be issued by such officer rather than at the Officer,
Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an
affidavit duly sworn and attested by a competent gazetted officer or non-
gazetted officer with particulars of castes and sub-castes, tribe, tribal
community, parts or groups of tribes or tribal communities, the place from which
he originally hails from and other particulars as may be prescribed by the
Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny
Committee shall be filed at least six months in advance before seeking admission
into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers,
namely, (I) an Additional or Joint Secretary or any officer high-er in rank of
the Director of the department concerned, (II) the Director, Social
Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in
the case of Scheduled Castes another officer who has intimate knowledge in the
verification and issuance of the social status certificates. In the case of the
Scheduled Tribes, the Research Officer who has intimate knowledge in identifying
the tribes, tribal communities, parts of or groups of tribes or tribal
communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior
Deputy Superintendent of Police in over-all charge and such number of Police
Inspectors to investigate into the social status claims. The Inspector would go
to the local place of residence and original place from which the candidate
hails and usually resides or in case of migration to the town or city, the place
from which he originally hailed from. The vigilance officer should personally
verify and collect all the facts of the social status claimed by the candidate
or the parent or guardian, as the case may be. He should also examine the school
records, birth registration, if any. He should also examine the parent, guardian
or the candidate in relation to their caste etc. or such other persons who have
knowledge of the social status of the candidate and then submit a report to the
Directorate together with all particulars as envisaged in the pro forma, in
particular, of the Scheduled Tribes relating to their peculiar anthropological
and ethnological traits, deity, rituals, customs, mode of marriage, death
ceremonies, method of burial of dead bodies etc. by the castes or tribes or
tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer
if he found the claim for social status to be “not genuine” or ‘doubtful’ or
spurious or falsely or wrongly claimed, the Director concerned should issue
show-cause notice supplying a copy of the report of the vigilance officer to the
candidate by a registered post with acknowledgement due or through the head of
the educational institution concerned in which the candidate is studying or
employed. The notice should indicate that the representation or reply, if any,
would be made within two weeks from the date of the receipt of the notice and in
no case on request not more than 30 days from the date of the receipt of the
notice. In case, the candidate seeks for an opportunity of hearing and claims an
inquiry to be made in that behalf, the Director on receipt of such
representation/reply shall convene the committee and the Joint/Additional
Secretary as Chairperson who shall give reasonable opportunity to the
candidate/parent/guardian to adduce all evidence in support of their claim. A
public notice by beat of drum or any other convenient mode may be published in
the village or locality and if any person or association opposes such a claim,
an opportunity to adduce evidence may be given to him/it. After giving such
opportunity either in person or through counsel, the Committee may make such
inquiry as it deems expedient and consider the claims vis-.-vis the objections
raised by the candidate or opponent and pass an appropriate order with brief
reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and
true, no further action need be taken except where the report or the particulars
given are procured or found to be false or fraudulently obtained and in the
latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also
in case candidate is minor to appear before the Committee with all evidence in
his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by
day-to-day proceedings within such period not exceeding two months. If after
inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious,
they should pass an order cancelling the certificate issued and confiscate the
same. It should communicate within one month from the date of the conclusion of
the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the
last date for admission into an educational institution or appointment to an
officer post, is getting expired, the candidate be admitted by the Principal or
such other authority competent in that behalf or appointed on the basis of the
social status certificate already issued or an affidavit duly sworn by the
parent/guardian/candidate before the competent officer or non-official and such
admission or appointment should be only provisional, subject to the result of
the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject
to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible
within a period of three months. In case, as per its procedure, the writ
petition/miscellaneous petition/matter is disposed of by a Single Judge, then no
further appeal would lie against that order to the Division Bench but subject to
special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be
false, the parent/guardian/the candidate should be prosecuted for making false
claim. If the prosecution ends in a conviction and sentence of the accused, it
could be regarded as an offence involving moral turpitude, disqualification for
elective posts or offices under the State or the Union or elections to any local
body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that
the certificate obtained was false, on its cancellation and confiscation
simultaneously, it should be communicated to the educational institution
concerned or the appointing authority by registered post with acknowledgement
due with a request to cancel the admission or the appointment. The Principal
etc. of the educational institution responsible for making the admission or the
appointing authority, should cancel the admission/appointment without any
further notice to the candidate and debar the candidate from further study or
continue in office in a post.”
5. The above directions of the Apex Court relate both to the issuance of fresh
community certificates and the verification of the genuineness of the
certificates issued already. As far as the issuance of fresh community
certificates is concerned, directions 1 & 2 are referable, where the Apex Court
has directed that the applications shall be made to the Revenue Divisional
Officers who are competent to issue such certificates and the parent, guardian
or the candidate, as the case may be, shall also file an affidavit duly sworn
and attested by a competent gazetted officer or non-gazetted officer with
particulars of castes, sub-castes etc., for consideration. The other directions
relate to the genuineness of the community certificates. From those directions,
we can only come to the conclusion that even when the applications for issuance
of community certificates are rejected, the aggrieved person can prefer appeal
to the Committee constituted to verify the genuineness of the community
certificates and such Committee would be certainly entitled to entertain such an
appeal and decide the same on its own merits.
6. In this context, we may also refer to the subsequent directions issued by the
Apex Court. On an application filed before the Apex Court to recall the judgment
giving various directions and to substitute in their place certain other
directions, the Apex Court had observed in Kumari Madhuri Patil and another v.
Additional Commissioner, Tribal Development, Thane and others, (1997) 5 SCC 437
that “in case any certificate has been wrongfully refused by the certificate
issuing authority, the aforesaid Committees also would go into the question and
decide in that behalf, whether refusal was wrongful and in case it finds that
the refusal was wrongful, they are at liberty to direct the authority to grant
the certificate.”
7. In view of the above, as against the order impugned in this writ petition,
the petitioner has got an effective remedy of appeal before the State Level
Scrutiny Committee. Hence the writ petition cannot be entertained. That apart,
the petitioner would be in a better position to place all factual matters before
the State Level Scrutiny Committee for its appreciation, as the High Court may
not have jurisdiction to decide the disputed questions in exercise of the power
under Article 226 of the Constitution of India. Hence the writ petition is
dismissed. The petitioner is given six weeks from today to file the appeal.
Consequently, M.P.(MD) Nos.1 & 2 of 2009 are also dismissed. No costs.
ss
To
1. The Revenue Divisional Officer
Sivakasi, Virudhunagar District
2. The Tahsidar
Rajapalayam
Virudhunagar District